In July of 2011 I wrote about the case of Aron Swartz, arrested at the time for stealing more than 4 million articles from JSTOR, an online archive and journal distribution service. I wasn’t too sympathetic, but admitted that I knew very little about the case. Everyone reading this knows by now that Swartz committed suicide at age 26 yesterday, January 12th.

I still don’t know much about the case, but I do know a lot more about how federal prosecutors operate, mainly, and I know a lot more about how we’ve reached a point where we have an Administration that has allowed U.S. law enforcement to become, to the extent it hasn’t already made it, a private enforcement agency for Big Content, or even just big anything — and how little the federal courts care about it, to the extent they aren’t all in.

I’m not a defender of Swartz’s actions still. He did steal that stuff. Information doesn’t “want to be free” — it’s stuff, and it wasn’t his to free. I think he should have gotten in trouble.

But as Patterico’s Pontifications points out in an exclusive interview with Swartz’s lawyer, the government had — as it does — gone way, way over the top here. A quote from the Swartzes:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

Again, I’m not too impressed by “cherished principles” of stealing stuff. It’s not “only information” — information is pretty much the most valuable stuff there is these days.

Okay, maybe not the stuff on JSTOR. But that is certainly not the point.

Think of it this way: On the one hand, as we saw in connection with Righthaven, we have judges getting fed up with parties suing defendants for preposterous damages on top of attorneys’ fees for stealing that kind of stuff — essentially worthless (financially speaking) copyright-protected material. That’s reasonable, because suits like that are abusive, out of hand. Intellectual property infringement is a tort. Sometimes it’s a crime. But it’s …

Author:Ron Coleman

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. This blog is about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

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